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Massachusetts Worker With Difficulties Speaking English Entitled to Compensation

calculator-stethoscope-1004851-mDoctors require an accurate medical history to diagnose an injury. The medical history is often dependent on a worker understanding and communicating with the doctor. Recent immigrants or those with difficulty speaking English may provide incorrect information to a doctor not understanding the question. Any incorrect information can change the diagnosis or the doctor’s assessment of the cause of an injury. This is one reason it can be useful to consult with an attorney as soon as you know you might need to file a worker’s compensation claim in Massachusetts. An attorney can make sure that any inaccuracies in the records are addressed before the claim reaches an administrative law judge, or try to arrange for a translator during a medical examination.

In a recent case, the insurer appealed from a decision that awarded ongoing temporary total incapacity benefits to a 28-year-old worker after a work injury. The worker was from the Dominican Republic and had worked for the employer as a carpenter/laborer but had trouble speaking and understanding English. He was working on a roof and moving a plywood sheet when wind pulled it away from him and caused him shoulder pain. On the same day, he hit his finger with a hammer and was treated at a medical center for his finger and shoulder.

When getting back to work, the worker was moving a bathtub downstairs when his co-worker slipped and left him holding the tub. This hurt his shoulder. He went to the ER the next day, but, since it was crowded, he left without seeing a doctor.

He told his employer about his shoulder pain. The employer told him to go home. He kept working for eight months but had to go home early because of his pain. He didn’t come back to the hospital during that time because he was worried about how he would pay for treatment. He was diagnosed with a shoulder strain. An MRI showed abnormalities, but these could have been degenerative or unrelated to the trauma. The worker had a surgery repair of dislocated Bankart lesion.

The judge adopted a medical examiner’s opinion that the worker had strained and destabilized his shoulder and had recurrent dislocations. The doctor opined the worker was permanently and partially disabled because of a pre-existing condition. He also opined, however, that there was a causal relationship between the industrial accident and the injury. The judge found that this opinion was based on an inaccurate shoulder history. The worker denied reporting a six-year history of shoulder problems, as the doctor had claimed.

The worker had difficulty speaking in English. Evidence of his shoulder dislocation arose from a single reference in a medical record, which was disputed. The judge considered these issues in crediting the worker’s testimony denying the medical history. At his deposition, the doctor had testified that his exam findings would be unchanged even if the injuries were the only pre-existing condition at the time of the industrial accident.

The insurer argued that the judge had misstated the doctor’s opinion by deciding the disability was caused by the work accident. The reviewing board disagreed. It found that the evidence showed the worker was disabled because of the pre-existing condition. However, the doctor had been asked to assume the six-year history of shoulder problems was a mistake and that he had never had shoulder problems before the work injury. The doctor testified that he would have found the worker had a shoulder dislocation from the work accident, even without a prior history of dislocations.

The insurer argued that, since it had established a pre-existing condition, the worker had to show the injury was a major cause of his disability. However, the judge had found that the prior condition was also due to a work injury. The worker didn’t have to address the heightened major cause standard. The decision was affirmed.

If you are hurt at work,  you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.More Blog PostsSubmitting Additional Testimony in Massachusetts Workers’ Compensation, March 12, 2013

Combustible Hazards in Massachusetts’ Workplaces, March 9, 2013

Impact of Misrepresentations About Your Activities in Massachusetts, March 7, 2013

 

 

 

 

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